The CMG Voice

Part of the Trump/Ryan health care bill that was pulled from the House for lack of votes, included some draconian provisions that would have made medical malpractice cases much for difficult to bring. Among other things, it would have imposed a “cap” on non-economic damages that would have limited such damages to $250,000, and also imposed limits on attorney fees that would mean lower fees on larger settlements or verdicts.

In other words, it would impose a sliding scale in which fees could be a fixed percent of the first $100,000, a smaller percent of the next $100,000, etc. The larger amounts would be limited to a 15% attorneys fee. Of course, the proposed law imposes no limits on the amounts defense attorneys could earn in resisting meritorious claims. Put another way, it would not cap what insurance companies can pay to fight the claims while, at the same time, limiting what a claimant can pay to fight for his rights.

It is hypocritical that Republicans, who believe in a free-market economy, would favor federal intrusion into what a willing client can pay his or her attorney to bring a medical malpractice lawsuit. It is also hypocritical that those who favor states’ rights, as most Republicans do, abandon those principles when it comes to medical legal cases. Tort law has been a state law prerogative from the beginning of our nation. Of course, the push to limit medical negligence cases has nothing to do with principle. It has everything to do with the power of the medical industry and the insurance carriers to limit the ability of an individual who is injured through medical negligence to seek redress through our justice system.

In practical terms, if the new law passed it would probably shut down most malpractice cases. The cases are extremely difficult as it is, with only a small percentage prevailing at trial. The costs needed to mount a serious case are such that few attorneys will bring them. The defendant hospitals and physicians have always been able to out-spend the claimants, and under the new law they can use that ability even more since the claimants’ attorneys could not get paid enough to justify the resources, including time and money, needed to bring a claim.

The new Secretary of Health and Human Services, former Representative Tom Price, is a physician who has fought for many years to restrict the legal rights of patients. We should assume that this fight will continue as long as he is in that position and the Republicans control the government.

Americans are increasingly relying on hospital emergency rooms to treat all manner of injuries, even minor ones. That places a high priority on decision models about which problems need emergent care, including expensive imaging studies. There are many clinical decision rules to stratify patients in terms of risk, but some of the most important are the Canadian Head CT Rule and the New Orleans Criteria.

Both are intended to reduce radiation exposure — and expense — from the frequent use of CT scans. Each of the systems utilizes a list of criteria, such as age, mental status after injury, vomiting and nausea, and amnesia. They vary slightly, with the Canadian rule using age 65 as the bottom age, while the New Orleans criteria uses the age of 60. The New Orleans criteria states that post-trauma headaches are a sufficient basis for ordering a CT while the Canadian system does not include that clinical indication.

Chest pain — perhaps the most common and most risky of presenting symptoms — is the focus of a scoring system called the HEART score, which stratifies patients according to history, EKG, age, risk factors for heart attacks, and the results of a troponin blood test. If patients have three or fewer of the enumerated risk factors, they have a 0.9-1.7% risk of a negative cardiac outcome in 30 days. Some studies show that this scoring system is as good or better than a stress test in establishing such risks.

None of the scoring systems for ER patients provide a “standard of care” in and of themselves, but they can be very useful for attorneys who are deciding whether a case has merit. Even if not admissible as establishing the standard of care, they also provide an excellent checklist that can be used by claimants’ attorneys in deposing doctors about their ER decision-making.

Since 2003, the Accreditation Council for Graduate Medical Education has established work standards for resident doctors in the United States. This includes caps on hours worked in a week and in a day.

Originally, the group determined that it was safe for doctors in residency to work up to 24 hours a shift, and as many as 80 hours a week. Then research highlighted the safety concerns of these doctors in training being sleep deprived, leading the group to shorten the work shift day for first year residents to 16 hours.

Now, the group has reversed itself, again allowing the most rookie of doctors to work 24 hours continuously.

Proponents of the shift back to the 24 hour cap say that resident have complained that they have had to end patient interactions abruptly rather than finish up. Opponents have cited the same safety concerns for patients, and called the system “patriarchal hazing.”

For many years, people have been screened for possible diseases, such as breast cancer, colon cancer, and lung cancer. The screening is done even when no symptoms are present. However, there has been no consensus among cardiologists about whether cardiac disease screening should be done and how effective it is in determining risk of heart disease. This is true despite the fact cardiovascular disease is the number one cause of death among Americans.

A new computed tomography (CT) scan may change this, because it can show even a small buildup of coronary plaques which can restrict blood flow and cause a myocardial infarction. There is now increased interest among physicians in screening non-symptomatic patients. The simple CT imaging technique is called a coronary artery calcium (CAC) scan.

Traditionally, patients have been screened for possible heart disease by using a combination of historical and clinical data and a standard blood test to measure serum lipids and blood glucose levels. However, the risk scores from such screening have been of uncertain value. Increasing data indicates that a CAC scan would be much more accurate for this purpose. The importance of more accurate screening is that it can lead to life-style and dietary changes, as well as medications that can reduce the future risk of cardiovascular disease.

The lead author of the study that found the CAC improved prediction of cardiac risks was Alan Rozanski, MD, director of the cardiology fellowship training program at Mount Sinai Hospital in New York. He stated that “using current state-of-the-art scanners, CAC scans are associated with only very low radiation exposure, similar to that of a mammogram.” He went on to say that “there is increasing interest in determining whether the use of CAC scanning could lead to earlier and more effective treatment of heart disease.”

In summarizing the importance of CAC screening, Dr. Rozanski said that “the CAC score has become one of our most robust predictors of patient risk” and “even a CAC score of one or above is sufficient reason for patients to adopt more heart-healthy behaviors.”

Not infrequently we get calls about surgeries gone wrong. Occasionally the caller is upset not just because of how the surgery went, but also about what information he or she knew prior to surgery. In particular, sometimes I hear a variation of “If I had known that this was the second time he’d ever done this surgery, I would never have agreed to it.”

When someone says something like this, they are essentially making a claim that they were not properly informed sufficient to give the surgeon consent to do the surgery. Every health care provider who is proposing a course of treatment has to tell the patient about all the “material facts” relating to the treatment, including risks and alternatives.

A “material fact” is one that a reasonably prudent patient in the same circumstance would attach significance to in deciding whether to go forward with the proposed treatment.

So the question is: is a surgeon’s lack of experience a “material fact”?

The answer, it may surprise you, is probably not.

One case in Washington involved a gallbladder removal. The surgeon had participated in a two-day class on how to do it, which included hands on participation in performing the procedure on three pigs. Soon after he met with a patient and determined she needed her gallbladder removed. He didn’t tell her he had never performed the procedure on a patient before.

The surgeon performed the procedure and injured the patient’s bile duct. She filed a lawsuit, and the jury determined that the surgeon’s experience was a material fact that needed to be shared. However, the Court granted the surgeon’s motion that, as a matter of law, the surgeon’s experience was not a material fact under the informed consent statute. The Court agreed.

A similar case was decided in similar fashion in 2007. In that case, a patient sued her surgeon after complications from a laparoscopic hernia repair. The surgeon in that case had only performed one other such surgery.

The Court did not rule out that some set of facts would make a physician’s experience a “material fact”, just not this one:

“we are not categorically holding that a physician’s inexperience is never material to an informed consent claim. There may well be situations where evidence of a physician’s experience would be a significant factor in a patient’s decision to undertake a particular course of treatment. But such a situation is not present here.”

Housel v. James, 141 Wash. App. 748, 756, 172 P.3d 712, 716 (2007).

Although regular folks – including the jury in the Whiteside case – may think that a physician’s experience (or lack thereof) performing a procedure is something that should be disclosed, Washington Courts think otherwise. At least for now.